NHS Fife lawyers acted 'negligently' in new Sandie Peggie employment tribunal ruling

Employment judge Sandy Kemp has ruled the health board will, however, still be able to run a “Bananarama defence” that argues it was not Ms Peggie’s behaviour that prompted disciplinary action to be taken but rather her beliefs.

The procedural issues were raised on the two final days of the employment tribunal in Dundee, giving Judge Kemp additional considerations to rule on.

Ms Peggie is suing NHS Fife and her colleague Dr Beth Upton after she was suspended following a Christmas Eve confrontation with Dr Upton in the women’s changing rooms.

So far the case has run for two months at a cost of £220,500.

NHS Fife and Dr Upton’s lawyer, Jane Russell KC, emailed the tribunal around 11.30pm on September 1 asking permission to amend the pleadings.

She argued in court the following morning that the chance was necessary to show the “true nature” of the case.

The Bananarama defence is so-called because of the band’s 1980s hit ‘It Ain’t What You Do, It’s the Way That You Do It’.

Ms Russell is using case law to argue that while Ms Peggie might be entitled to hold a protected belief, employers may act if those beliefs result in inappropriate, offensive or disproportionate behaviour in the workplace.

Ms Peggie objected to sharing a woman’s changing room with Dr Upton, who was born male but identifies as a woman.

The pair clashed on December 24, 2023, and Ms Peggie was subsequently suspended before all allegations against her were dropped.

During the final day of the hearing on September 2, Ms Peggie’s barrister Naomi Cunningham argued that allowing such a late change would unfairly prejudice her client and force witnesses to be recalled.

The tribunal has unanimously refused the application to amend the pleadings, saying it was unnecessary because the argument had already been raised by NHS Fife.

However, the court said it would allow a narrower amendment to the List of Issues — the case management document that sets out the questions to be decided — “in the interests of justice”.

It found that although the respondents’ failure to address the point earlier “can only be described as negligence”, the tribunal was able to amend the agreed list of issues.

Scottish Conservative equalities spokesperson Tess White MSP called the actions of NHS Fife “a desperate attempt to delay the case and buy time from a health board that has been secretive and underhand”.

She added: “This ruling is damning for NHS Fife – whose lawyers shamefully tried to move the goalposts at the eleventh hour in this case.

“SNP ministers must explain why this health board instructed their legal team to take this decision and who knew about it.”

The note setting out the panel’s decision was scathing of NHS Fife’s legal team.

It reads: “No explanation as to why an application to amend it so late in the day to add reference to the issues which are loosely described as being of causation was given to us.

“That is surprising, and does not reflect at all well on those acting for the respondents.

“They argue in effect that they have not abandoned the causation or separability issues, but the tribunal has the ability to hold that they did so simply from the terms of the list of issues they stated specifically had been agreed.

“It seems to us given the terms of the respondents’ pleading and initial or opening skeleton argument that had been ordered and provided, and the other factors we refer to in this decision, that the omission must have been by what we can only describe as negligence.”